Attn all attorney's and the like!

[FN Phat]

Quick question. I have a friend that is going through a nasty divorce in Utah. The other day they were arguing and he followed her to the bathroom. When she closed the door he hit the door open-handed and it cracked the outside of the door. He decided to leave before it escaladed into anything more. He was about 4 miles away and realized that he left his cell phone at the house. He turned around and went in the house to get his phone and his kids were sitting on the couch. He asked his kids what they were doing and they said that mommy told them that they were going to have visitors. When my buddy asked what was going on his wife said, "Stick around and find out." It clicked to what was going on and he asked if she called the cops. He went outside and the police arrived.

To make a long story short, my friend was issued three tickets including domestic violence, domestic violence in the presence of a minor, and property damage. It was his house and his bathroom door. He was told that b/c it was real property it is considered domestic violence. He never touched her but did crack the door that he hit open-handed. Is this legit? How can it be domestic violence if he never touched her or the kids?

TIA.

[All-American]

Quick question. I have a friend that is going through a nasty divorce in Utah. The other day they were arguing and he followed her to the bathroom. When she closed the door he hit the door open-handed and it cracked the outside of the door. He decided to leave before it escaladed into anything more. He was about 4 miles away and realized that he left his cell phone at the house. He turned around and went in the house to get his phone and his kids were sitting on the couch. He asked his kids what they were doing and they said that mommy told them that they were going to have visitors. When my buddy asked what was going on his wife said, "Stick around and find out." It clicked to what was going on and he asked if she called the cops. He went outside and the police arrived.

To make a long story short, my friend was issued three tickets including domestic violence, domestic violence in the presence of a minor, and property damage. It was his house and his bathroom door. He was told that b/c it was real property it is considered domestic violence. He never touched her but did crack the door that he hit open-handed. Is this legit? How can it be domestic violence if he never touched her or the kids?

TIA.

This is a friend in Utah, I take it? Assuming that it is:

It sounds like the police are saying that he violated 76-6-106(2)(c), which says a person commits criminal mischief if he “intentionally damages, defaces, or destroys the property of another.” Even though it is his house, it is “the property of another” under 76-6-101(3) if anyone else has a possessory or proprietary interest in the house. The statute above is part of the list of crimes which, if committed against a cohabitant, constitute domestic violence under 77-36-1(4). When the act is committed either in the presence of the child or with the knowledge that a child is present and may see or hear the act, they can tack on the additional charge (76-5-109.1).

So yes, you can commit domestic violence without touching your spouse or children. You can imagine why the statute would be expanded to cover occasions where somebody is breaking chairs and windows. One argument your friend could make is that he didn’t intend to damage the door, but I don’t know enough about how that kind of an argument would be received in this context.

Take that for what it's worth, coming from a 1L after less than an hour of research.

[TripletDaddy]

the ownership issue is irrelevant to domestic violence and if memory serves, property damage isn't a specific intent crime, so intent isn't relevant.

ps as a general rule of thumb, and without doing a minute of research, cops don't come to a house after a heated spousal argument wherein the husband punches a hole in the door, only to issue 3 citations unless they feel that some sort of law has potentially been violated.

Your friend is wise to leave the house when he is angry in order to ensure that things don't escalate. But if he argues with a spouse to the point where he hits doors and realizes he has to leave, there is a much bigger anger management issue here.

[All-American]

the ownership issue is irrelevant to domestic violence and if memory serves, property damage isn't a specific intent crime, so intent isn't relevant.

ps as a general rule of thumb, and without doing a minute of research, cops don't come to a house after a heated spousal argument wherein the husband punches a hole in the door, only to issue 3 citations unless they feel that some sort of law has potentially been violated.

Your friend is wise to leave the house when he is angry in order to ensure that things don't escalate. But if he argues with a spouse to the point where he hits doors and realizes he has to leave, there is a much bigger anger management issue here.

"Property damage" need not be a specific intent crime, no, but I'm not sure that property damage is a crime at all without intent; otherwise, it is a tort, is it not? These are of course the feeble musings of a tender 1L, which may be swept away with the most slight wind of evidence, but I'm not seeing anything under the Utah Statutes for offenses against property that would cover unintentional damage to property of the sort described above:

http://le.utah.gov/~code/TITLE76/76_06.htm

In order to form the basis for a citation for domestic violence, property damage must occur as a result of a violation of parts one, two, or three of this chapter, and I'm not sure that it does if there is no intent.

Your second and third points are obviously correct, but I imagine the friend might want to challenge whether the policemen were correct in issuing the citations.

[TripletDaddy]

"Property damage" need not be a specific intent crime, no, but I'm not sure that property damage is a crime at all without intent; otherwise, it is a tort, is it not? These are of course the feeble musings of a tender 1L, which may be swept away with the most slight wind of evidence, but I'm not seeing anything under the Utah Statutes for offenses against property that would cover unintentional damage to property of the sort described above:

http://le.utah.gov/~code/TITLE76/76_06.htm

Your second and third points are obviously correct, but I imagine the friend might want to challenge whether the policemen were correct in issuing the citations.

I am not sure either. I am simply trying to remember off the top of my head. Your guess is just as good. One thing the friend can do....the citation is going to name the codified violation. He can look at the section, look it up online, and then see what the elements are from there. You can also ask the police as they are citing you (achtung, obviously, as cops don't want someone to get uppity during a domestic visit)

[MartyFunkhouser]

Quick question. I have a friend that is going through a nasty divorce in Utah. The other day they were arguing and he followed her to the bathroom. When she closed the door he hit the door open-handed and it cracked the outside of the door. He decided to leave before it escaladed into anything more. He was about 4 miles away and realized that he left his cell phone at the house. He turned around and went in the house to get his phone and his kids were sitting on the couch. He asked his kids what they were doing and they said that mommy told them that they were going to have visitors. When my buddy asked what was going on his wife said, "Stick around and find out." It clicked to what was going on and he asked if she called the cops. He went outside and the police arrived.

To make a long story short, my friend was issued three tickets including domestic violence, domestic violence in the presence of a minor, and property damage. It was his house and his bathroom door. He was told that b/c it was real property it is considered domestic violence. He never touched her but did crack the door that he hit open-handed. Is this legit? How can it be domestic violence if he never touched her or the kids?

TIA.

It is legit. Tell him to be prepared to get served with a protective order soon.

[FN Phat]

It is legit. Tell him to be prepared to get served with a protective order soon.

That is exactly what happened next. DDD, you are correct that there is an anger management issue. That is just the tip of the iceburg. It is a messed up situation from top to bottom. The issue is that he is far more capable of raising his children and yet with this development, if he can't get the charges dropped, he will have a hard time showing this in the court of law. I am assuming that he is screwed, in regards to custody. Is this correct?

[All-American]

That is exactly what happened next. DDD, you are correct that there is an anger management issue. That is just the tip of the iceburg. It is a messed up situation from top to bottom. The issue is that he is far more capable of raising his children and yet with this development, if he can't get the charges dropped, he will have a hard time showing this in the court of law. I am assuming that he is screwed, in regards to custody. Is this correct?

30-3-10.10. Parenting plan -- Domestic violence.
(1) In any proceeding regarding a parenting plan, the court shall consider evidence of domestic violence, if presented.
(2) If there is a protective order, civil stalking injunction, or the court finds that a parent has committed domestic violence, the court shall consider the impact of domestic violence in awarding parent-time, and make specific findings regarding the award of parent-time.
(3) If the court orders parent-time and a protective order or civil stalking injunction is still in place, it shall consider whether to order the parents to conduct parent-time pick-up and transfer through a third party. The parent who is the stated victim in the order or injunction may submit to the court, and the court shall consider, the name of a person considered suitable to act as the third party.
(4) If the court orders the parents to conduct parent-time through a third party, the parenting plan shall specify the time, day, place, manner, and the third party to be used to implement the exchange.

So it's a factor they consider-- but it clearly won't bode well.

[MartyFunkhouser]

That is exactly what happened next. DDD, you are correct that there is an anger management issue. That is just the tip of the iceburg. It is a messed up situation from top to bottom. The issue is that he is far more capable of raising his children and yet with this development, if he can't get the charges dropped, he will have a hard time showing this in the court of law. I am assuming that he is screwed, in regards to custody. Is this correct?

He isn't necessarily screwed with regards to custody, but he has a hell of a battle on his hands. He will have a brief period of time with supervised visitation until the protective order is dropped or modified. He will likely have to take anger management classes and have a DV assessment (he probably should agree to do this to show that he is willing to change). The protective order won't end up having supervised time for an extended period of time with the kids unless their are other extenuating circumstances. Likely this means they will be doing exchanges at a professional agency.

If he wants to keep fighting, the custody evaluation (especially if she was a stay at home mom) will end up giving him some sort of joint custody situation where he has an extra overnight on alternating weekends and his midweek as an overnight. If he is unlikely he is going to get statutory visitation. He should get a lot of good language in the parenting plan that keeps him involved and if his ex is crazy she will violate it all and he will be back in court in another 1-2 years.

The system is still very slanted against women with custody so he was in an uphill battle to start and he didn't do himself any favors. The primary factor for awarding temporary custody is primary caretaker, which usually ends up being the woman. Temporary orders often end up being permanent orders or modified slightly with permanent orders. His best bet at this point is fight for a custody evaluator with a strong preference for 50/50 custody because that is a best case scenario that he probably isn't even going to get.

[wuapinmon]

How would it look if he enrolled in an anger-management course, pronto?

[FN Phat]

How would it look if he enrolled in an anger-management course, pronto?

Great question.

[FN Phat]

Thank you AA, DDD and Funk. I appreciate the comments. My buddy is in for a long run.

[Commando]

first of all, dude needs to get a lawyer stat to whittle away those domestic violence shits. We have to do it all the time in immigration law b/c d-v charges will screw up a mug's papers. Just b/c the police give you a ticket don't make it so...

Secondly, his custody will probably end up about the same as it was ever going to be-- joint legal and she'll have sole physical w/ reasonable visitation as per the statute.

[Surfah]

That whole situation is ugly. The husband has definite anger issues. But the wife, for lack of a better term, is a whore. Seriously. I don't know how he put up with everything for so long. It's just sad. The poor kids. And FN Phat is right, he's 1000x more responsible than his wife and is hands down the better parent. In fact since they've moved to Utah he's pretty much been a stay at home dad. I hope this turns out well, but I don't think it's going to for anyone involved.

[HuskyFreeNorthwest]

Just b/c the police give you a ticket don't make it so...

Commando just sounded like the best lawyer on the board. Everyone else is dropping all this law mumbo jumbo and Commando comes in like Johnnie Cochran saying "Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!"

"Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests"

I'm putting Donut on notice, step your law game up or you will be working second chair to Commando.